NEGOTIATING WRITERS’ RIGHTS: FREELANCE CULTURAL LABOUR …

[Pages:20]119 Just Labour: A Canadian Journal of Work and Society--Volume 17 & 18

NEGOTIATING WRITERS' RIGHTS: FREELANCE CULTURAL LABOUR AND THE CHALLENGE OF ORGANIZING

Nicole S. Cohen1 PhD Candidate, Graduate Program in Communication and Culture, York University, Toronto, Ontario, Canada

ABSTRACT

As media companies grow in profits and economic significance, workers in these industries are experiencing precarious forms of employment and declining union power. This article provides insight into the experiences of a growing segment of the media labour force in Canada: freelance writers, who face declining rates of pay, intensified struggles over copyright, and decreasing control over their work. At the same time, freelancers are currently experimenting with various approaches to collective organizing: a professional association, a union, and an agency-union partnership. As part of a larger project on freelance writers' working conditions and approaches to organizing, this article provides an overview of three organizational models and raises some early questions about their implications.

INTRODUCTION

Despite a recent spate of layoffs and laments of financial crisis, media industries, including Canada's, remain profitable, powerful economic actors (OMDC 2010; Winseck 2010; Statistics Canada 2011a). Media workers, however, are experiencing precarious forms of employment and eroding union power (Nies and Pedersini 2003; Dueze 2007; PWAC 2006; Walters, Warren and Dobbie 2006). In particular, journalism--a once secure, well-remunerated form of labour, thanks largely to a long history of unionization of staff journalists--has become an increasingly insecure form of work. Corporate restructuring, including concentration, convergence, and the adoption of lean production methods, has combined with processes of digitization and the growth of online publishing to produce new business models and aggressive management practices. As a result, the constitution of media labour has rapidly begun to mirror precarious forms of employment in other sectors. And, like

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workers in other sectors, media workers are currently undertaking efforts to make sense of the changes they face and to determine the most effective ways to address them.

This article provides insight into the experiences of a growing segment of the media labour force in Canada: freelance writers, or self-employed journalists who sell articles or editorial services to publications (including magazines, newspapers, websites, and books) or to clients (corporate, government, and nonprofit) that do not employ them. While this form of employment was once a choice made by a small cohort of writers seeking autonomy and control over their work, freelancing is rapidly becoming the only option available for those who want to work in media, particularly for those who want to write (McKercher 2009; Nies and Pedersini 2003; Walters, Warren and Dobbie 2006).

Media firms' evolving practices over the past twenty years have brought dramatic changes to writers' incomes and control over their work. Although freelance writing for newspapers and magazines has historically been low-paid work (Barbour 1982; Harrison 1982; Peterson 1964), publishers' rates of pay have remained stagnant since the 1970s. In 2005, Canadian freelancers earned an average of just over $24,000 before tax (PWAC 2006, 12).2 In a recent survey I conducted of Canadian freelance writers (71 percent of whom listed freelance writing as their main job), 45 percent reported earning under $20,000 from writing in 2009.

Most publishers in Canada have grown into or have been absorbed by converged media chains: large corporations that control a range of integrated media properties, hungry for content that can be re-purposed for a variety of media platforms. In the past, freelance writers rarely received contracts for assignments. Now, large media companies present writers with lengthy contracts claiming bundles of rights to exploit writers' works in multiple formats, including future rights to works in formats that have yet to be invented, without extra compensation (D'Agostino 2010). Most freelance writers have neither individual nor collective power to negotiate these contracts.

As journalism shifts to online formats, working writers face a growing challenge to their craft and to their livelihoods: a push for free content, which takes multiple forms. Free content is solicited from "citizen" journalists, from scores of unpaid interns working full-time for no pay (and replacing entry-level employees), and from user-generated content on both new media sites and traditional news outlets, most recently The London Free Press (OReilly 2011). Free content has become publishers' preferred source of revenue, a fact that was made clear in February 2011, when news site and content aggregator The Huffington Post, which does not pay the thousands of bloggers who provide its content, was acquired by media giant AOL for US$315 million, with no payout to contributors.3 It is becoming alarmingly common to pay writers for their work with little more than `exposure,' which has had a generalized effect of depressing

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wages, increasing the pool of writers competing for work, and devaluing this form of labour.

Freelance writers are not unique in facing economic insecurity and declining control over their work. What is significant, however, is the heightened attention writers are paying to their collective condition and the range of approaches to organizing with which they are experimenting. As writers' awareness of their position as workers grows, extending beyond their traditional identification as professionals, journalists, or even artists, how they choose to organize will be instructive to workers in other cultural sectors.

Journalists employed at North American newspapers began collectively organizing in the 1930s and 1940s to regulate pay and working conditions and to improve their occupational status (Leab 1970; Deck 1988), but Canadian freelance writers have not been part of these unions. For one, they have existed outside the boundaries of a regulated employment relationship. Legally classified as selfemployed workers or independent contractors (despite the fact that many freelancers are in fact economically dependent on one organization), freelance writers are "outside the ambit of labour protection and collective bargaining," assumed to be entrepreneurs who do not require legal protection (Fudge 2003: 36-7). In addition, Canadian labour law does not typically support multipleemployer bargaining (although creative worker unions in the film and television industries are notable exceptions and provide a viable model for freelance writers).4 Freelance workers are difficult to organize, and freelancing used to be an atypical form of employment in the media industries--it is likely that until recent years there have not been enough freelancers to make organizing this cohort worthwhile for unions. Because of an inability to access and in some cases an aversion to union membership, the vast majority of freelance writers have learned to rely on individual coping strategies to address challenges they face.

Although there have been various writer-led initiatives and individual successes over the years, as a group, freelance writers have been unable to effectively defend themselves against powerful publishers. Existing organizations have a history of advocacy and have tried boycotts, lobbying, lawsuits, and building writer networks, but writers have stopped short of collective bargaining for minimum scale agreements.5 Writers and unions have recently begun rethinking traditional approaches to writers' organizations and ways to effectively gain power. In what follows, I provide an overview of three organizational models that have emerged to address freelance writers' struggles: the professional association model, a union, and an agency-union partnership. While it is too early to assess the effectiveness of these organizations, it is useful to consider their approaches and freelancers' attitudes toward them in light of the challenges involved with organizing these workers.

By comparing writers' organizing models, it becomes clear that the approaches writers favour tend to reinforce notions of professionalism and a

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preference for a service-based organization. This approach has not given freelancers the power required to effectively resist the challenges they face and to defend themselves against corporations' changing business practices. The logic underpinning this organizational model--which emphasizes individualization, reinforces competition, and remains committed to cordial relations with industry--can mask relations of exploitation. This history has meant that as magazines become part of large media conglomerates, freelance journalists find their power in decline, along with levels of pay and quality of work. A union established for the purpose of collective bargaining, following examples of freelance worker unions in the film and television industries, could be the most effective way to challenge powerful publishers. However, there are challenges to achieving this form of collective organization. These challenges are related to a history of non-unionization, freelance writers' employment status and occupational identities, the organization of freelance labour, the cultural legacy of Canadian magazine publishing, and the broader political, economic, and cultural climate in which freelance writers work. The rest of this paper discusses these challenges and examines three organizing models.6

CHALLENGES TO ORGANIZING FREELANCE WRITERS

The most obvious challenge to collectively organizing freelance writers is organizing people who do not work for a single employer or in the same location. Freelance writers work alone, usually in their homes, isolated from one another. Most freelancers do not know other freelancers; their closest industry contacts are usually editors, an arrangement that makes it difficult for organizations to recruit writers. In addition, freelance writing is a fluid occupation. People shift in and out of freelance status, limiting a proper count of how many freelancers exist and preventing organizations from developing an accurate estimate of the numbers needed to recruit a critical mass large enough to force publishers to bargain.

Another challenge to organizing freelancers relates to what Brophy (2008:7) identifies in other knowledge-worker sectors as an absence of a "collective memory of struggle," or the fact that freelance writers have no "tradition of trade unionism upon which to draw" (Leab 1970:17). Although cultural workers in North American film, animation, and media industries have a long and at times militant history of collective organizing, bargaining, and strikes (see, for example, Gray and Seeber 1996; Sito 2006; Mosco and McKercher 2008), writers have not generally turned to trade unions to address their labour challenges.7 Journalists employed in large organizations have been unionized for decades, but many freelance writers have chosen not to work in a newsroom, distancing themselves from unions and even maintaining antagonistic relationships with

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staff journalists, who in their own interests have tried to limit the amount of work contracted to freelance writers (PWAC 2006:8).

Journalists, whether by their own career aspirations or by publishers' influence, have historically identified as professionals, which has limited the organizational forms these workers have sought out. Journalists began claiming professional status around the birth of the commercial press in the late eighteenth and early nineteenth centuries, when the work of reporting was comparable to factory work in terms of pay and job security (Soloman 1995:129). While newspaper journalists sought professional status to improve their working conditions, their employers embraced journalistic professionalism as a calculated business strategy. To expand mass readerships in order to increase advertising sales, publishers promoted a vision of professionalism that emphasized objective, detached, unbiased reporting, a vision that pushed reporters to align themselves with publishers' interests rather than with those of other newsroom workers, such as printers (Carey 1969; McChesney 2008).

Journalists' occupational ideology stressed individual action and reinforced the notion that hard work and good luck would lead to fame, or at least middleclass professionalism and career mobility (Leab 1970:8, 32; Salcetti 1995:70-1; Brennen 2004). The profession of journalism came to be understood as irreconcilable with the collective nature of organized labour (Soloman 1995:12728). The legacy of journalistic professionalism includes the expectation that writers have a commitment to their work that goes beyond financial gain. "Thus," write Kates and Springer (1984:247), writers "are supposed to care more about the work than about money, and collective bargaining for better wages would be seen as lowly and unprofessional." A deference to professionalism has combined with what Ross (2000) calls the "cultural discount," adopted by cultural workers whose idealized notions of autonomy and desire for gratifying work lead them to willingly discount the cost of their labour in the hopes of future rewards.

This legacy of professional and artistic labour, combined with the organization of freelance work, can obscure relations of exploitation. Although writers work alone, they closely collaborate with editors, who mediate between writers and the publishers who set rates (or the budgets rates are paid from) and dictate the terms of contracts. The writer-editor relationship is creative and, for many writers, enjoyable. The pair works together from a story's conception to the published piece, a process that can take months. Because of this close relationship, many writers find it difficult to engage in negotiations over fees with editors. This fear of damaging creative relationships is a barrier against writers taking a stand against publishers. Even an experienced writer who is an outspoken advocate for writers' rights says that he hesitates to risk straining his relationships with editors: "[I worry] that I might alienate valuable existing

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clients in an industry that is so very, very small" (personal communication, 2010).

The cultural importance assigned to Canadian magazines, where freelance writers have traditionally published, has also shaped how writers respond to work-related challenges. The dominant narrative about magazines in Canada is that they have historically been labours of love founded to foster the development of a distinctive Canadian culture (see, for example, O'Leary 1961; Barbour 1982:40; Woods Gordon 1984). This discourse of nationalism and cultural importance assigned to magazines--perpetuated by publishers, governments, academics, and writers themselves--has served to obscure the experiences of writers as workers and has rendered questions about working conditions un-askable. Those who do ask receive a refrain all too common in magazine publishing throughout the decades: "we just cannot afford it" (Barbour 1982; Woods Gordon 1984:71; Wilson 2010:27). Even as magazines have become integral parts of publishing conglomerates--Canada's magazine publishing industry was worth US$1.03 billion in 2009 (OMDC 2010:4)--the cultural importance assigned to them persists and many writers report feeling lucky to be able to make a contribution to Canadian culture.

The term `free lance' originally described professional soldiers who sold their services to any army, maintaining "no permanent connections or professional obligations" (Rogers 1931:246). Contemporary freelancers have traded the lance for the keyboard, yet the notion of independence associated with the concept of freelance remains. In my survey, I asked 193 writers how effective they thought a labour union could be in protecting self-employed writers. Eight percent said "very effective," 38 percent said "somewhat effective," and 39 percent said "not effective" (15 percent had no opinion). When asked to list the most effective way for freelance writers to address challenges they face, 46 percent of writers selected "learn how to adapt and best manage as an individual" (only 10 percent selected "form a union to collectively bargain").

It is an industry dictum that journalism attracts individual-minded people (see Drobot and Tennant 1990; Titus 1950 for examples), but it is also structural competition--freelance writers are in direct competition with one another for limited assignments--fuelled by the fleeting promise of "making it" and the attendant rewards success can provide that constrain possibilities for collective organization (Kates and Springer 1984:247). The organization of freelance labour prevents writers from identifying the challenges they face with those of other writers, limiting the ability to accurately depict the causes of the problems writers are confronting. This can be the difference between identifying low rates of pay with personal failure or as an inevitable fact of freelancing, versus identifying low rates of pay as an employer practice of exploitation.

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To address these conditions, various approaches to organizing have emerged in Canada. The rest of this paper examines three dominant organizing models that have developed and considers their implications.

THE PROFESSIONAL ASSOCIATION

Dozens of small professional associations for writers exist in Canada, but the largest is the national Professional Writers Association of Canada (PWAC), which has about 700 members and twenty-two chapters across the country. PWAC's goals include promoting professional standards; encouraging good fees for writers; offering members professional development and networking opportunities; advocating on behalf of writers (to publishers and governments); and connecting writers, who often work in isolation (PWAC 2006:9). These activities are in line with those typically pursued by the professional association model, which is committed to "establishing, maintaining, and enhancing professional identity" (Hurd 2000:12). Unlike associations of regulated professions such as medicine or law, PWAC does not set educational standards and professional criteria nor provide licences to control access to the labour market (Ibid.), but over the years its activities have extended beyond professional development and advocacy.

Although currently operating on a professional association model, which tends to cater to workers on an individual basis (Hurd 2000:14), PWAC's initial orientation focused on writers' economic relations with publishers. The group formed in May 1976 as the Periodical Writers Association of Canada, with 75 members. PWAC aimed to formalize the casual, individualized nature of freelance writing, to improve writers' abilities to earn decent livings, to provide freelancers with a professional designation, and to build a collective voice.

Archival records reveal a spirit of collectivity and resistance in PWAC's early years. Members formed and were active in grievance and negotiations committees, and meeting minutes contain terms such as "rank-and-file" and "exploitation." A founding member suggested the group be called The Periodical Writers' Union of Canada (PWAC 1976; 1976-78; 1976-77). PWAC developed a code of ethics and a model contract that included what were, at the time, "unheard of protection[s] for writers" (Kates and Springer 1984:239), including fees for rewrites, "kill fees" for articles written but not published, and payment schedules.

Throughout the late 1970s, PWAC negotiated its new contract with nineteen Canadian magazines. The organization aimed to eventually engage in collective bargaining and twice threatened strike action, against Weekend and Chatelaine magazines (Ibid.:239). Its grievance committee was strong and won most of its challenges against magazines that had mistreated writers. By the 1980s, PWAC's original leadership stepped down, largely due to volunteer burnout, but also

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because of a disagreement with the membership over how political the organization should be (Ibid.). PWAC's direction shifted away from militant worker action toward professional development and providing group insurance. The emphasis on collective bargaining faded. As Kates and Springer (Ibid.) write, "People had wanted better wages and working conditions and the contract that would ensure this, but they did not want to call the organization a union or to be identified with union practices."

In 2005, with 600 members, PWAC changed its name to the Professional Writers Association of Canada, acknowledging writers' inability to earn an income solely from periodical writing and cementing the organization's new direction. Since then, executive directors, staff, and the board have worked to professionalize PWAC's governance model, moving further away from being a member-driven organization toward one under which paid staff have autonomy to conduct the organization's business (staff are accountable to an elected national and regional board of directors, while members can participate in volunteer committees). A PWAC staff member explains the organizational shift: "We've moved from being antagonistic toward publishers and editors to being an ally and a partner in the industry." This means avoiding "demonizing" publishers or adopting an "adversarial attitude" (personal communication 2010).

Under this cooperative vision, PWAC wants to be viewed as a partner in developing industry-wide solutions rather than a confrontational group defending only writers' interests (PWAC 2006). So, while PWAC participates in boycotts of publishers that present unfair contracts and mediates non-payment or copyright complaints for individual members, it also cooperates with industry on projects it hopes will improve writers' conditions in the long term.

PWAC's primary role is advocacy. When rights-grabbing contracts first emerged in the 1990s, PWAC negotiated with publishers and won some changes to contracts. PWAC has participated in consultations and made submissions to the government on copyright reform, promoting the protection of creators' rights in copyright legislation (PWAC 2006:35). PWAC helped freelance journalist Heather Robertson settle two class-action lawsuits. The first, launched in 1996 after The Globe and Mail published Robertson's articles in three electronic databases without her permission, was settled in 2009 with $11-million paid to Robertson and other freelancers. The second lawsuit, Robertson v. ProQuest, CEDROM, Toronto Star Newspapers, Rogers and CanWest, was settled for $7.9 million in May 2011. Although these settlements have put some money in freelancers' pockets and represent an acknowledgement that writers should be compensated for multiple use of their works, Michael OReilly, a past president of PWAC and current president of the Canadian Freelance Union, notes that the lawsuits deal with past practices and in fact may have spurred the proliferation of contracts that demand multi-platform rights (personal communication 2010).

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